Bill To End Indefinite Detention Fails In House

WASHINGTON — A judge may have found unconstitutional the law that allows people to be held indefinitely without trial by the military, but the House of Representatives voted Friday to keep it anyway.

On Wednesday, Federal Judge Katherine Forrest found that the law violates rights to free speech and due process. But House members defended it, ultimately voting 238 to 182 against an amendment to guarantee civilian trials for any terrorism suspect arrested in the United States.

The measure, sponsored by Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.), had been backed by a mix of conservatives, moderates and liberals who argued that letting the president decide to detain anyone — including Americans — deemed to be a terrorist was granting the executive too much power. And they argued that with more than 400 terrorists having been tried and convicted in civilian courts while dozens of plots were prevented, the law was unnecessary.

“The president right now has the authority to go outside the normal due process, constitutionally protected rights that are part of a court trial, and lock somebody up indefinitely or place them in military custody here in the U.S.,” Smith said in floor debate. “That is an extraordinary amount of power to give the executive branch over individual freedom and liberty. I don’t think it is necessary to keep us safe.”

One Tea Party freshman, Rep. Morgan Griffith (R-Va.), took to the floor to note the judge’s verdict and cite a letter that Thomas Jefferson wrote to James Madison in 1787 arguing for the Bill of Rights. Jefferson insisted that such liberties should be spelled out, not left to “inference.” A key reason Forrest found the law unconstitutional was its vagueness and lack of definitions.

“Jefferson was not willing to allow us to rest on the rights of inference, nor should we in this Congress also be willing to rest on the rights of inference, and particularly when you have language such as this coming out of the court yesterday evening,” Griffith said. “As long as I serve in Congress, I will stand up for liberty and make sure that no citizen of the United States has their due process removed.”

Lawmakers who opposed the amendment, however, argued that mandating regular trials would tie the president’s hands and give terrorists special rights.

“What that means is, as soon as a member of al Qaeda sets foot on American soil, the first thing he hears after ‘You are under arrest’ is, ‘You have the right to remain silent, you have a right to be provided an attorney and if you can’t afford one, one will be provided for you,” Rep. Mac Thornbury (R-Texas) said. “There may be differences about how we treat illegal aliens who come here as members of al Qaeda to conduct terrorist attacks, but I think the vast majority of people in this body and around the country do not think telling them they have the right to remain silent as the first thing they hear is a wise thing.”

Rep. Tom Rooney (R-Fla.) said the amendment treats terrorists like common burglars and offered his own amendment to only hold trials in Guantanamo Bay, Cuba. It passed. Another counter proposal, sponsored by Rep. Louie Gohmert (R-Texas), suggested granting court hearings only to people who are legally in the United States. Amash argued, however, that the Constitution expressly says all “persons” are entitled to its protections, not just citizens or legal residents.

“I sometimes hear this strange argument that the Constitution applies only to citizens, not persons. If you read the Fifth and 14th Amendment, it applies to persons,” Amash said. “James Madison said the Constitution applies to persons, and logic dictates the Constitution applies to persons,” he added, noting that the government is no more allowed to tell non-citizens to worship a state religion or house troops than it is to tell citizens. “Of course not. That’s ridiculous.”

Gohmert’s measure — which essentially guarantees a habeas corpus hearing, but not a trial — also passed.

Smith said he also found absurd the idea that his and Amash’s amendment somehow helped terrorists.

“Hands down, the dumbest set of arguments I have heard … [is] that somehow taking away this extraordinary power from the president rewards terrorists,” he said. “I’d like to remind everybody, in particular, Tea Party conservatives, that just because the government arrests you doesn’t mean you’re guilty. Under their thinking, basically once the government says you’re a terrorist, you’re a terrorist. And we shouldn’t have a trial about it.”

“I cannot believe that Tea Party conservatives want to create a situation where when the government says you’re guilty of a crime, that’s it, no trial,” Smith continued. “Let’s just lock you up and forget about it.”

In Forrest’s ruling, the judge found that a group of reporters and activists had a reasonable fear that the government could deem them to have provided support to someone associated with al Qaeda simply by interviewing them.

The federal government has not said yet if it intends to appeal the case, and the ruling could end up trumping Congress’ actions. The Senate also will be marking up its version of the defense bill next week, and some senators are intent on passing an amendment similar to the one sponsored by Smith and Amash.

This article has been updated to reflect the fact that amendments proposed by Rep. Tom Rooney (R-Fla.) and Rep. Louie Gohmert (R-Texas) both passed.

Michael McAuliff covers politics and Congress for The Huffington Post.

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